Direct discrimination occurs when someone is treated less favourably in the workplace because of a protected characteristic. Indirect discrimination occurs when a workplace policy or procedure applies to everybody, but it puts those who have a protected characteristic (as defined in the Equality Act 2010) at a disadvantage.
What Are Protected Characteristics?
The Equality Act 2010 sets out 9 protected characteristics. These are personal characteristics which are protected by law, meaning that it's illegal to discriminate against a person because of any of these characteristics.
The 9 protected characteristics set out in the Equality Act 2010 are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
When an individual is treated less favourably at work because of one (or more) of the protected characteristics listed above, this is direct discrimination. Examples of direct discrimination might include dismissal, refusal to employ someone, refusal to promote someone, or withholding benefits or training from them.
This could be in the form of a pregnant employee being denied a promotion because of her pregnancy, for example, or a disabled candidate being overlooked for a role because of their disability.
Interestingly, the individual in question does not necessarily have to have the protected characteristic in order to be the victim of direct discrimination. They could be treated less favourably because their family member, friend or associate has a protected characteristic – this is direct discrimination by association. Or they could be treated less favourably because they are perceived to have a certain protected characteristic, even if they don't – this is direct discrimination by perception.
If an employer has certain practices, procedures, rules or processes that put people with a protected characteristic at a disadvantage then this is indirect discrimination. The key difference here is that the employees who are at a disadvantage because of their protected characteristic are not being singled out by their employer, they are simply subject to the same rules as everyone else. However, because of their protected characteristic, the rules put them at a disadvantage compared with their co-workers.
Indirect discrimination can occur as a result of formal processes or as a result of one-off, informal arrangements, but the main factor is that the practices, procedures, rules or processes must apply to everyone in the same way. If a rule or policy only applies to some of the workforce based on their shared protected characteristic, then this could be direct discrimination, rather than indirect discrimination.
Any example of indirect discrimination could be a contract clause which applies to all employees saying that they could be required to work late or travel away from home for work at short notice. Although this applies to everyone in the same way, this could potentially put a young mother at a disadvantage, as she would need to make childcare arrangements. This could be seen to be indirect discrimination on the basis of her gender.
Another example of indirect discrimination could be insisting that all employees work on a certain date, which is a religious holiday. Although this rule applies to everyone, it disadvantages certain employees because of their religion while other employees who do not practice that religion will not be at a disadvantage.
Objective Justification for Indirect Discrimination
In certain circumstances, indirect discrimination may not be unlawful if an employer can demonstrate that there is an 'objective justification' for the rule, process or procedure in question.
The employer will be required to show that the rule, process or procedure in question is necessary to achieve a certain aim, the benefits of which outweigh the discriminatory impact. They will also need to demonstrate that there would be no other way of achieving this same aim in a way that did not indirectly discriminate certain employees.
While costs and economic benefits to the business could be taken into consideration, cost alone is unlikely to be sufficient as a justification for indirect discrimination.
Speak to an Employment Solicitor
If you feel that you have suffered direct discrimination or indirect discrimination in the workplace, then speak to an Employment Solicitor who can provide you with advice and guidance on the next steps to take. There are strict time limits for making a discrimination claim, so it's important to act quickly. At Co-op Legal Services, our Employment Solicitors can help you to take the first step and guide you through the process.